Is Trump disqualified from the ballot by the 14th Amendmend?

[JayUtah]

Originally Posted by Regnad Kcin

The American people did decide. In 2020.

And in 2016. Trump has never won a popular vote for President. He became President only in 2017 because of the quirk of the Electoral College. Certainly that entitles him to the office beyond any reasonable legal doubt. But that's not the same as winning the majority of public approval. The Electoral College cuts both ways. If you argue he got the office despite public opinion, then you can't argue that his holding the office expresses public opinion about him. The public said no, but we had to endure him anyway because the architecture of our government is the dumb way it is.

Quote:

And Trump has yet to concede or abide by their decision, sparing no effort in the years since to reverse what the American people wanted.

He can express to his heart's content his disbelief in having lost the 2020 election. He can make all the speeches he wants to that effect. But when he starts acting in a way that looks like compulsion or coercion under color of law to have that opinion regarded by everyone else as fact, he treads on thin ground.

[Hercules56]

Originally Posted by Regnad Kcin

The American people did decide. In 2020. And Trump has yet to concede or abide by their decision, sparing no effort in the years since to reverse what the American people wanted.

What, because he stamps his feet and holds his breath, we should say, hey, that’s okay. Best two out of three? When he flips the poker table over after losing every hand, scattering chips, money, chips (the other kind), and beer, we should invite him back to the game?

No, I'm saying its his Constitutional right to run for President unless he has committed sedition or aided seditious acts by others.

Let the court decide if he actually did so.

[bruto]

Originally Posted by Hercules56

No, I'm saying its his Constitutional right to run for President unless he has committed sedition or aided seditious acts by others.

Let the court decide if he actually did so.

I'm still not convinced that the all these things are the same. It is likely within the realm of free speech that anyone can campaign for office, and within the realm of free speech that anyone can write in any name on a ballot. I am not convinced that this right equals the right to be declared eligible by the agencies charged with the duty of determining eligibility.

[Orphia Nay]

Originally Posted by Andy_Ross

Republican Attorneys General in several states investigating if trump is eligible to run in their state's Republican primary.

Not sure of the source of this. Can anybody confirm?

[Hercules56]

Originally Posted by Orphia Nay

Not sure of the source of this. Can anybody confirm?

Any Republican attorney general who decides that Trump is no longer eligible to run for president will soon be impeached by his Republican constituencies.

[ahhell]

Originally Posted by JayUtah

I'm not sure we're yet on the same page regarding what standing is under Article III. But I agree that the application of standing has been problematic. Historically the courts have manipulated standing suspiciously in order to selectively grant relief. The plaintiffs in Biden v. Nebraska had an extremely flimsy argument for standing that lower courts rejected. The U.S. Supreme Court—desperate to undercut the President's campaign promise—granted standing almost as a routine matter. I know a few lawyers and law professors that are still drinking about this.

Famously, 42 U.S.C. § 1983 provides a statutory cause of action for people to sue government actors when their rights under the law or the Constitution are violated. The Supreme Court has steadily eroded who can be considered injured by government action in a way that invokes this cause of action. The reasoning generally follows the pattern: "Yes, Bill had section 1983 standing for his claim, but you don't because your case differs from Bill's because of this tiny inconsequential detail, so we're denying you."

In my mind this isn't a problem so much with standing per se as it is with how courts manipulate it for political purposes. Maybe that's what you meant to say, and if so, I agree.

That's basically what I mean. That's also a great example as it was a pretty clearly illegal executive order but almost got by because even when they finally granted standing, whether the plaintiff had standing was not at all clear. Even if you don't think it was clearly illegal, it was at least questionable enough that someone should have been able to contest it.

[JayUtah]

Originally Posted by ahhell

That's basically what I mean. That's also a great example as it was a pretty clearly illegal executive order but almost got by because even when they finally granted standing, whether the plaintiff had standing was not at all clear. Even if you don't think it was clearly illegal, it was at least questionable enough that someone should have been able to contest it.

We may come down on different sides of the issue in Biden v. Nebraska, and that's fine. I think we agree on the potential to misuse standing, and that's what I hoped to get to. As noble and necessary as it is, that doesn't stop it from being used politically.

[Craig4]

Originally Posted by Hercules56

No, I'm saying its his Constitutional right to run for President unless he has committed sedition or aided seditious acts by others.

Let the court decide if he actually did so.

This is complicated so parroting anti-American talking points isn't really sufficient. Where does it say in the amendment that a conviction is required to bar someone from serving as president.

[Hercules56]

Originally Posted by Craig4

This is complicated so parroting anti-American talking points isn't really sufficient. Where does it say in the amendment that a conviction is required to bar someone from serving as president.

Obviously it says nothing about a conviction but how else are we supposed to officially and fairly decide if someone has committed insurrection? Flip a coin??

[Segnosaur]

Originally Posted by Craig4

Quote:

No, I'm saying its his Constitutional right to run for President unless he has committed sedition or aided seditious acts by others.

Let the court decide if he actually did so.

This is complicated so parroting anti-American talking points isn't really sufficient. Where does it say in the amendment that a conviction is required to bar someone from serving as president.

I hate to side with hercules56...

But, the problem with the 14th amendment is that it is vague. it states "shall have engaged in insurrection or rebellion" but doesn't give any guidelines about how to determine when someone has actually "engaged in insurrection".

Now, back when it was passed, the assumption was "were they confederate leaders". But, now adays, you need to make a determination of who was an insurrectionalist without also using the same rules to disqualify others for political reasons.

Ok, Trump probably fits the definition of supporting an insurrection... But there are plenty o'republicans who would also try to pin the label on Biden (why? something something hunter biden laptop border crossing whatever). So you need some sort of mechanism of determining who actually tried to overthrown the government vs. who didn't but it is politically expedient to claim they did.

Leaving it up to the state politicians is risky, since you might have a state with a republican legislature who voted for democrats at the federal level. (So you run into a situation where Biden is off the ballot in places like Georgia.)

So leaving it up to the courts (either by a criminal conviction, or some sort of special ruling) makes the most sense.

[ahhell]

Originally Posted by JayUtah

We may come down on different sides of the issue in Biden v. Nebraska, and that's fine. I think we agree on the potential to misuse standing, and that's what I hoped to get to. As noble and necessary as it is, that doesn't stop it from being used politically.

I think this is accurate.

[Hercules56]

Originally Posted by Segnosaur

I hate to side with hercules56...

But, the problem with the 14th amendment is that it is vague. it states "shall have engaged in insurrection or rebellion" but doesn't give any guidelines about how to determine when someone has actually "engaged in insurrection".

Now, back when it was passed, the assumption was "were they confederate leaders". But, now adays, you need to make a determination of who was an insurrectionalist without also using the same rules to disqualify others for political reasons.

Ok, Trump probably fits the definition of supporting an insurrection... But there are plenty o'republicans who would also try to pin the label on Biden (why? something something hunter biden laptop border crossing whatever). So you need some sort of mechanism of determining who actually tried to overthrown the government vs. who didn't but it is politically expedient to claim they did.

Leaving it up to the state politicians is risky, since you might have a state with a republican legislature who voted for democrats at the federal level. (So you run into a situation where Biden is off the ballot in places like Georgia.)

So leaving it up to the courts (either by a criminal conviction, or some sort of special ruling) makes the most sense.

Seams Congress already addressed this issue in 1948. They made it an official crime to engage in or support an insurrection, and specifically stated that the punishment includes being barred from public office.


https://uscode.house.gov/view.xhtml?...%20under%20the

2383. Rebellion or insurrection
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

(June 25, 1948, ch. 645, 62 Stat. 808 ; Pub. L. 103–322, title XXXIII, §330016(1)(L), Sept. 13, 1994, 108 Stat. 2147 .)


Looks like Congress literally attempted to address the vagueness of the 14th amendment. Why should we reinvent the wheel?

[Dave Rogers]

Originally Posted by Hercules56

[i]2383. Rebellion or insurrection
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

The final clause applies to Trump already.

Dave

[Hercules56]

Originally Posted by Dave Rogers

The final clause applies to Trump already.

Dave

14th Amendment vaguely banned anyone who has committed insurrection against the United States from holding public office. In 1948 Congress filled the holes and made insurrection a crime, conviction leading to being banned from public office.

Looks to me like Congress wanted people to actually be convicted of insurrection for them to be banned from public office. I don't think we should try to circumvent federal law.

[Trebuchet]

Originally Posted by JayUtah

And in 2016. Trump has never won a popular vote for President. He became President only in 2017 because of the quirk of the Electoral College. Certainly that entitles him to the office beyond any reasonable legal doubt. But that's not the same as winning the majority of public approval. The Electoral College cuts both ways. If you argue he got the office despite public opinion, then you can't argue that his holding the office expresses public opinion about him. The public said no, but we had to endure him anyway because the architecture of our government is the dumb way it is.



He can express to his heart's content his disbelief in having lost the 2020 election. He can make all the speeches he wants to that effect. But when he starts acting in a way that looks like compulsion or coercion under color of law to have that opinion regarded by everyone else as fact, he treads on thin ground.

He did win the popular vote in 2016! By a lot! According to him.

[Hercules56]

The US Code criminalizing Insurrection or aiding Insurrection, also includes the following reference to the 14th Amendment. I think this is damn good evidence that Congress intended to rectify the vagueness of the 14th Amendment, making it clear exactly how one might lose their ability to run for President if they engaged in insurrection.

https://uscode.house.gov/view.xhtml?...%20under%20the



Cross References

Disqualification as officers or electors of persons who have engaged in insurrection or rebellion and removal of disability, see Const. Amend. 14, §3.

Federal retirement benefits, forfeiture upon conviction of offenses under this section, see section 8312 of Title 5, Government Organization and Employees.

Forfeiture of veterans' benefits upon conviction under this section, see section 6105 of Title 38, Veterans' Benefits.

Officers aiding importation of books and articles containing matter advocating insurrection against the United States, see section 552 of this title.

Writings advocating insurrection declared nonmailable, see section 1717 of this title.


While I would LOVE it if an Attorney General could unilaterally disqualify Trump from running for POTUS next November, its just too vague to give people such power. Congress resolved this issue. One must be indicted and convicted of Insurrection in order to lose their ability to run for office.

Another FACT: Congress has ultimate authority regarding elections for President.

[JayUtah]

Originally Posted by Hercules56

The US Code criminalizing Insurrection or aiding Insurrection, also includes the following reference to the 14th Amendment.

No, the cross references are not part of the text of the law. They are added by unelected professional clerks to aid in legal research. That's why this particular manner of publishing the United States Code is referred to in legal circles as the "Federal Supplement." You're referring here to the supplemental material, not the law.

Quote:

I think this is damn good evidence that Congress intended to rectify the vagueness of the 14th Amendment, making it clear exactly how one might lose their ability to run for President if they engaged in insurrection.

18 U.S.C. § 2383 provides for criminal penalties for acts of insurrection irrespective of whether the defendant holds or aspires to hold elected office. It doesn't really clarify anything; it merely restates some of the text of the 14th Amendment. It doesn't, for example, define insurrection.

Strictly speaking this statute would not require any explicit Constitutional authority. Congress may criminalize whatever behavior it wishes. However, the punishment in the case of aspiring officials requires Constitutional authority because otherwise the courts look rather skeptically on restrictions to eligibility for office that don't have it. Yes, it's quite likely the sponsors of this bill had the 14th Amendment in mind. But I see no evidence that the text of the bill is meant to clarify or change anything about the Amendment.

Quote:

Another FACT: Congress has ultimate authority regarding elections for President.

No, the Constitution does. Congress has only the powers enumerated to it by the Constitution.

[JayUtah]

Originally Posted by Hercules56

In 1948 Congress...

No, in 1948 Congress rewrote the entire United States Code, organizing it into the titles and sections we now use. The original law that was reclassified into 18 U.S.C. § 2383 dates to much earlier.

Quote:

filled the holes and made insurrection a crime, conviction leading to being banned from public office.

Congress made insurrection a crime with penalties assessed upon anyone who commits it whether or not they intend to run for public office. The 14th Amendment per se does not criminalize any behavior.

Quote:

Looks to me like Congress wanted people to actually be convicted of insurrection for them to be banned from public office. I don't think we should try to circumvent federal law.

No, this is an entirely backwards interpretation. Federal law cannot supersede or modify the terms of a constitutional amendment.

[bruto]

Originally Posted by Hercules56

14th Amendment vaguely banned anyone who has committed insurrection against the United States from holding public office. In 1948 Congress filled the holes and made insurrection a crime, conviction leading to being banned from public office.

Looks to me like Congress wanted people to actually be convicted of insurrection for them to be banned from public office. I don't think we should try to circumvent federal law.

I am not entirely convinced this must be true even though it is likely to be so most of the time. Of course in the case of the Civil War the insurrection was obvious and needed no conviction. Now it's a bit muddier. If there has been a valid legal judgment that an insurrection has occurred (and that may have been the case by now with some convictions related to it) and if a person is judged to have contributed to it, incited it, encouraged it, etc., I am not convinced that a conviction must be in existence for the disqualification to occur, even though I do believe due process should be available if such a disqualification is made.

[Dave Rogers]

Originally Posted by Hercules56

14th Amendment vaguely banned anyone who has committed insurrection against the United States from holding public office. In 1948 Congress filled the holes and made insurrection a crime, conviction leading to being banned from public office.

Looks to me like Congress wanted people to actually be convicted of insurrection for them to be banned from public office. I don't think we should try to circumvent federal law.

It was a joke.

Dave

[JayUtah]

Originally Posted by bruto

Of course in the case of the Civil War the insurrection was obvious and needed no conviction.

Section 3 was invoked a number of times during Reconstruction without the need for a criminal conviction and—in the case of expulsion from Congress—without the intervention of courts.

Under 18 U.S.C. § 2383, conviction is sufficient for ineligibility, but not necessary. Conviction under other U.S. criminal laws, however, has also been used to bar insurrectionists from taking office, even though the penalties mentioned in those laws do not include a bar from office or any reference to the 14th Amendment. There is considerable historic and legal precedent for enforcing section 3 of the 14th Amendment irrespective of this particular statute.

[Mike!]

Originally Posted by bruto

I am not entirely convinced this must be true even though it is likely to be so most of the time. Of course in the case of the Civil War the insurrection was obvious and needed no conviction. Now it's a bit muddier. If there has been a valid legal judgment that an insurrection has occurred (and that may have been the case by now with some convictions related to it) and if a person is judged to have contributed to it, incited it, encouraged it, etc., I am not convinced that a conviction must be in existence for the disqualification to occur, even though I do believe due process should be available if such a disqualification is made.

Several Proud Boys have been charged and convicted of Insurrection now, and several of them have explicitly said they felt they were acting on Trump's orders. I don't feel there's too many dots in line to connect them together enough to disqualify Trump now.

[Hercules56]

Originally Posted by JayUtah

No, in 1948 Congress rewrote the entire United States Code, organizing it into the titles and sections we now use. The original law that was reclassified into 18 U.S.C. § 2383 dates to much earlier.



Congress made insurrection a crime with penalties assessed upon anyone who commits it whether or not they intend to run for public office. The 14th Amendment per se does not criminalize any behavior.



No, this is an entirely backwards interpretation. Federal law cannot supersede or modify the terms of a constitutional amendment.

By that argument, the Electoral Count Act is null & void as it adds rules and regulations to the 12th Amendment and the certification of electoral votes.

[slyjoe]

Originally Posted by Hercules56

By that argument, the Electoral Count Act is null & void as it adds rules and regulations to the 12th Amendment and the certification of electoral votes.

But is the ECA in conflict with the 12th Amendment? That is the question the courts would look at.

[Hercules56]

Originally Posted by slyjoe

But is the ECA in conflict with the 12th Amendment? That is the question the courts would look at.

The ECA builds upon the 12th Amendment, just as the cited US Code builds upon the 14th Amendment.

[JayUtah]

Originally Posted by Hercules56

By that argument, the Electoral Count Act is null & void as it adds rules and regulations to the 12th Amendment and the certification of electoral votes.

No, it implements the 12th Amendment. The Constitution works in broad strokes. Congress implements those broad strokes in terms of policy. Where applicable, the executive creates specific enforceable rules within that policy.

Congress does not need the 14th Amendment in order to criminalize insurrection per se. Its authority to do so does not flow from the Amendment. And in fact, until the turn of the last century, Congress didn't feel the need to criminalize much if anything. It was felt that criminal law was best left to the states. But in any case, Congress may outlaw any manner of behavior and prescribe a penalty for it that is allowed by the Constitution. However, under few if any circumstances may that penalty include a bar from holding office. Since the Constitution is the final authority on who is eligible for office, Congress has very little authority to add criteria. But in the case of insurrection as lately defined, the 14th Amendment permits Congress to penalize that crime with the additional—otherwise unimposable—penalty of ineligibility for public office.

There is no legal basis for the claim that conviction under 18 U.S.C. § 2383 is required for ineligibility under section 3 of the 14th Amendment and no evidence that this is what Congress intended that law to do. There is ample historical evidence that Section 3 was applied irrespective of any law, and indeed in circumstances such as expulsion from Congress in which no statute applies. (Congress is self-regulating.) There is some historical precedent for applying Section 3 pursuant to violations of other federal criminal laws, including those for which no ineligibility penalty or condition is mentioned.

That a law exists that alludes to the 14th Amendment to impose a criminal penalty that would be otherwise precluded does not flow back uphill to the Amendment.

[JayUtah]

Originally Posted by Hercules56

The ECA builds upon the 12th Amendment, just as the cited US Code builds upon the 14th Amendment.

No.

The ECA implements the 12th Amendment in terms of Congress' function of self-regulation.

18 U.S.C. § 2383 does not implement the 14th Amendment. The Amendment does not call for criminal penalty, and authority under Section 3 of the 14th Amendment to bar people from taking office has been variously applied with or without a violation of criminal law, and with or without the intervention of courts. The notion that § 2383 somehow now constrains the application of the 14th Amendment is wholly without legal basis.

[Lurch]

If a person bragged online about attending the J6 rally and getting as far as the Capitol steps applied for a job (such as CEO of some company) and got rejected because of that activity, would he have any right to appeal to a higher authority?

Is an aspirant to political office afforded the privilege of a higher bar of exclusion that that imposed upon other applicants for employment?

We already have policies whereby criminal action against pols in campaign mode is nixed for fear of the perception of political interference. It's clear enough that the political class enjoys certain protections. Little wonder that playground is such an attraction for the criminal set.

[Craig4]

Originally Posted by Hercules56

Obviously it says nothing about a conviction but how else are we supposed to officially and fairly decide if someone has committed insurrection? Flip a coin??

Wow, that's off the charts willfully obtuse even by your standards.

[Hercules56]

Originally Posted by Craig4

Wow, that's off the charts willfully obtuse even by your standards.

Ok.

Anyway, it appears that the courts will finally settle this issue this year, as there will be several lawsuits attempting to bar Trump from running due to the 14th Amendment and imagine at least one state will follow through with this.

Good times.

[JayUtah]

Originally Posted by Mike!

Several Proud Boys have been charged and convicted of Insurrection now, and several of them have explicitly said they felt they were acting on Trump's orders. I don't feel there's too many dots in line to connect them together enough to disqualify Trump now.

That's a problematic line of reasoning. In general, one's belief that he has been deputized by some authority and is acting properly under that authority doesn't automatically attach liability to that authority. Nor is the agent completely absolved—even if the agent is an authentic deputy. That the President orders you to attack someone does not remove your responsibility to act in conscientious accordance with the law.

Conversely it doesn't matter whether anyone believes or obeys an authority's orders. If the President knowingly orders an act of insurrection, he is liable for that attempt whether or not it succeeded. Criminal law does not generally require a criminal effort to succeed in order for liability to attach.

To repeat the hackneyed phrase, it's going to come down to what did the President know and when did he know it. If Trump truly believed he was encouraging people to save democracy by protesting the certification of a stolen election, he might escape liability (but probably not, since the President has many tools available to him other than the deputization of an armed mob). But Trump's other statements and the observations of others cast doubt on the veracity of any such belief.

Trump's best defense is that he never ordered anyone to do anything illegal or as part of a seditious conspiracy. He can try to say he meant to organize and lead a peaceful protest outside the Capitol and that any who took his statements as authorization for or instructions to carry out an violent, armed intervention were mistaken. That certain people got the wrong impression isn't his fault. Even in the hands of a skilled prosecutor, what any number of people understood Trump to have meant doesn't provide evidence for his actual mental state.

I guess, good luck with that kind of defense. Trump knew the audience for his speech was armed. He took affirmative steps as President to ensure that they could remain armed. He invited them to march to the Capitol and promised that he would join them. Knowing what we know about Donald Trump, it's not out of the question to suppose that he planned to march at the head of a vast throng of his armed supporters, storming into the Capitol and demanding that the Vice President reject the "fraudulent" votes from states that voted against him, and instead accept his alternate electors, thereby saving democracy from the Deep State. He seems to have been prevented from doing some such thing only by the Secret Service. And that may help him legally since actions are harder to explain away than words.

Of course the mistake is to believe Trump took or contemplated any of these actions out of anything but narcissism. Remember he's really only in this for the ratings. He likely wanted visuals on the 6 o'clock news (Is that even a thing anymore?) of him appearing as the personal champion of truth, justice, and the American way. It's not about those ideals. It's about Trump being associated personally with defense of those ideals, and thereby reinforcing his cult of personality. The notion that his actions might be considered some kind of insurrection (justified or not) probably never entered his thinking.

Where Trump might actually get into trouble is in his promise to pardon those convicted from the Jan. 6 insurrection. Regardless of whether it can be established that he ordered them to do what they did, a promise of pardon could be seen to give aid and comfort to those actors. It will be hard to argue that he approves of their behavior enough to pardon them, but not enough to be identified with their criminal conspiracy.

[JayUtah]

Originally Posted by Hercules56

Ok.

Anyway, it appears that the courts will finally settle this issue this year, as there will be several lawsuits attempting to bar Trump from running due to the 14th Amendment and imagine at least one state will follow through with this.

Good times.

I know only of Lawrence Caplan's lawsuit, which has been discussed already insofar as the information we have about it allows. Do you know of any other actual suits that have been brought? If we can find them and read the complaints and briefs, it would help us see where the legal minds of the country are trending.

Alternatively, I believe it was reported that several states' attorneys-general are investigating the issue. This could be misunderstood. It's the job of a governmental attorney-general to provide legal analysis of possible questions ahead of a decision by the executive or action by the legislature. Although it's going to be highly instructive to read the reports of these attorneys-general, it would be premature to suppose that any of their analysis will lead directly to legal action.

[Regnad Kcin]

Originally Posted by JayUtah

<snip>

I guess, good luck with that kind of defense. Trump knew the audience for his speech was armed. He took affirmative steps as President to ensure that they could remain armed. He invited them to march to the Capitol and promised that he would join them. Knowing what we know about Donald Trump, it's not out of the question to suppose that he planned to march at the head of a vast throng of his armed supporters, storming into the Capitol and demanding that the Vice President reject the "fraudulent" votes from states that voted against him, and instead accept his alternate electors, thereby saving democracy from the Deep State. He seems to have been prevented from doing some such thing only by the Secret Service. And that may help him legally since actions are harder to explain away than words.

<snip>

Knowing what we know about Trump, the idea of him waddling, much less marching, more than one city block…

[Hercules56]

Originally Posted by JayUtah

I know only of Lawrence Caplan's lawsuit, which has been discussed already insofar as the information we have about it allows. Do you know of any other actual suits that have been brought? If we can find them and read the complaints and briefs, it would help us see where the legal minds of the country are trending.

Alternatively, I believe it was reported that several states' attorneys-general are investigating the issue. This could be misunderstood. It's the job of a governmental attorney-general to provide legal analysis of possible questions ahead of a decision by the executive or action by the legislature. Although it's going to be highly instructive to read the reports of these attorneys-general, it would be premature to suppose that any of their analysis will lead directly to legal action.

No, I know of no other lawsuits or attempts by anyone in state govt. to have Trump banned from running. But lots of folks have written about it.

[JayUtah]

Originally Posted by Regnad Kcin

Knowing what we know about Trump, the idea of him waddling, much less marching, more than one city block…

As long as they can make it look good on the trading card.

[W.D.Clinger]

Although this doesn't have anything to do with the 14th amendment, I think it's a better fit for this thread than for the DeSantis Gambit thread.

In Florida, a convicted felon cannot hold public office until he has finished serving his sentence.

There is a legal question as to whether a federal office such as the presidency counts as a public office under Florida law.

But if it does, any felony conviction of Trump might call into question whether it would be legal for Florida's electoral votes to go to Trump. It wouldn't have to be a conviction for insurrection or anything similar. Without Florida's electoral votes, Trump's chances of becoming President would be greatly diminished.

I don't think this is a serious problem for Trump, mainly because the rule that prevents convicted felons from holding public office is not part of Florida's constitution or state law. It is merely a rule decreed by Florida's clemency board. If the clemency board and governor wanted to waive that rule on behalf of a single individual such as Trump, they probably could do so. Because we're talking about Florida, they probably would do so.

[Hercules56]

Originally Posted by W.D.Clinger

Although this doesn't have anything to do with the 14th amendment, I think it's a better fit for this thread than for the DeSantis Gambit thread.

In Florida, a convicted felon cannot hold public office until he has finished serving his sentence.

There is a legal question as to whether a federal office such as the presidency counts as a public office under Florida law.

But if it does, any felony conviction of Trump might call into question whether it would be legal for Florida's electoral votes to go to Trump. It wouldn't have to be a conviction for insurrection or anything similar. Without Florida's electoral votes, Trump's chances of becoming President would be greatly diminished.

I don't think this is a serious problem for Trump, mainly because the rule that prevents convicted felons from holding public office is not part of Florida's constitution or state law. It is merely a rule decreed by Florida's clemency board. If the clemency board and governor wanted to waive that rule on behalf of a single individual such as Trump, they probably could do so. Because we're talking about Florida, they probably would do so.

This would conflict with the Constitution which makes it clear what the qualifications are to run for president. 38, natural born citizen, not having conspired with an insurrection. You can have a murder conviction and still run for president, if you were born in the USA and the right age.

[JayUtah]

Originally Posted by W.D.Clinger

There is a legal question as to whether a federal office such as the presidency counts as a public office under Florida law.
* * *
It is merely a rule decreed by Florida's clemency board.

It almost certainly cannot apply at the federal level, even if it were a Florida state law instead of merely an administrative rule. The Constitution is the authority for eligibility for President and for all other federal elected office. The courts have looked very skeptically at attempts by lower authority (state or federal) to add to or inflate those criteria. A legislature may, for example, require the candidate to take specific actions to demonstrate the eligibility required in the Constitution. Some states may require a birth certificate; my state requires only that the candidate declare under oath that he is eligible. A legislature may not impose new criteria such as above-nominal application fees, absence of previous condition of servitude, citizenship of the candidate's parents, or the absence of a criminal conviction. That is, a state may not substantively narrow the criteria beyond those in the Constitution. Florida would have a very hard time preventing Trump from being a candidate for President in that state on the grounds of a felony conviction.

You could even make a case that the administrative rule is unconstitutional even by Florida standards. The same reasoning that prevents narrowing of criteria at the federal level could be used to prevent it at the state level. The canons of statutory construction pretty much say in this case that if something isn't listed, it can't be inferred. So the absence of language such as, "...and has not been convicted of any felony," in the Florida constitution means it cannot be added by a legislature or executive.

[Norman Alexander]

Originally Posted by Regnad Kcin

Knowing what we know about Trump, the idea of him waddling, much less marching, to the limo to drive him more than one city block…

Adding appropriate words.

[W.D.Clinger]

Originally Posted by JayUtah

It almost certainly cannot apply at the federal level, even if it were a Florida state law instead of merely an administrative rule. The Constitution is the authority for eligibility for President and for all other federal elected office....

I think you're right about that.

Originally Posted by JayUtah

You could even make a case that the administrative rule is unconstitutional even by Florida standards. The same reasoning that prevents narrowing of criteria at the federal level could be used to prevent it at the state level. The canons of statutory construction pretty much say in this case that if something isn't listed, it can't be inferred. So the absence of language such as, "...and has not been convicted of any felony," in the Florida constitution means it cannot be added by a legislature or executive.

That's harder to argue.

Every State is Different:

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Felons can run for public office in any local, state, or federal election as long as there isn’t a specific law barring them from that office. No part of the United States Constitution states a felon is disqualified from running for any elected office.

It is up to the individual state and local municipality to decide whether they want to allow criminals to run for office. That typically comes in the form of a morality clause written into the requirements for the elected position.

In Connecticut, for example, CT Gen Stat § 9-46. (2022) says:

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(c) No person who has forfeited and not regained such person's privileges as an elector as provided in section 9-46a, or who has regained such privileges and again forfeited such privileges as provided in subsection (b) of this section, may be a candidate for or hold public office.

In Texas:

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Section 141.001 of the Texas Election Code generally provides that to be eligible to be a candidate for, or elected or appointed to, a public elective office, a person must have not been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities. This means there is no automatic restoration of the right to be a candidate, as there is for voting purposes, after a full discharge. Absent a pardon, the candidate must have obtained a judicial release from his or her disabilities in order to run for any office to which this section applies.